The Big Interview with Bernard Georges

“I regret to say that the judgement will convince few people”

Following the Constitutional court rulings handed out on 31 May 2016 in regards to last December’s Presidential elections, our newspaper caught up with Wavel Ramkalawan’s primary counsel, Bernard Georges, to get his reaction on the unanimous judgements handed down by Chief Justice Twomey and Judges McKee and Akiiki-Kiiza.

Having been the lead counsel together with your wife Mrs. Annette Georges, can you tell us how you feel personally about the court’s decisions?

Disappointed. Not because we lost – that was always a possibility, a likelihood even. It takes a very strong court to invalidate a presidential election. Also, as recognized by the Court itself, the task of bringing a successful election petition is daunting: you have two weeks to gather the evidence, find witnesses, draft the petition, research the law; people are reluctant to come forward to testify etc. All these make the job difficult. But, even so, I expected a fairer judgment than the one we received. The two judgments have serious omissions and errors, which one does not expect from the Constitutional Court. We received a judgment which paid lip-service to the petitions, but proceeded to what looks like an inevitable conclusion. I feel disappointed because the judgments will make it difficult for others in the future to want to challenge wrongs in elections. I feel disappointed because the Constitutional Court turned the tables on the complainant and allowed the one who had obtained the benefit of proven illegalities to get off without paying any price, and the one who had lost to be further punished. I feel disappointed because, deep down, I do not feel the overall outcome was just. Not because we lost, as I say, but because of the manner of the loss – of the overall dismissive attitude of the Court (except against Mr Ramkalawan) to proven problems.

But I am also satisfied. Annette and I are immensely grateful that we were given the opportunity of leading this important case and proud that we were able to bring out the numerous instances of irregularity in the election process, and illegal practices by supporters of the President. The outcome notwithstanding, this much will remain: that several people committed illegal electoral practices and that these were substantially within the camp of the winner. Whether or not the President is responsible for these (and the Court, wrongly in my view, found he was not) his slim victory is tainted by these illegalities. It is up to him now to judge the quality of his victory in the light of these findings by the Court. It is one thing to say that the Court has endorsed the outcome of the election; it is another thing altogether to live with the knowledge that that outcome was achieved through a series of proven illegal practices. We must not allow the headline that the Court will report Wavel Ramkalawan so that he will be removed from the voters register to obscure this important aspect of the case. Where it mattered most, our case was proven. Mission accomplished. And for that, as a lawyer, I am satisfied.

What impact do you think this ruling will have on Seychelles' democracy and our judicial system?

Our democracy is fragile and young. Our judicial system is emerging from long years of kowtowing to the executive. Both need nurturing. Nobody is going to do that for us. This is a process which we have to go through for ourselves as a nation. This process requires that we adhere to some fundamental and universal benchmarks, not merely pay lip-service to them. To have a Leader of the Opposition, for instance, who bears a title but leads nothing, let alone an opposition, is a waste of time. It convinces no-one and does not propel the country forward. It slows the growth of democracy while stroking the ego of one individual. So, too, a judicial system. Courts do not exist to validate ills. They exist primarily to correct wrongs. The Constitutional Court has a further duty – to lead the country constitutionally. Having found that numerous illegal practices and election irregularities had occurred, and that the former had been committed in the camp of the winner, was it fair for the Court to have let the winner get off scot-free, but punish the loser? In the answer to this question will lie the answer as to the impact the ruling will have on our judicial system. Then, of course, there is the disqualification of Wavel Ramkalawan as a voter. The result here will be that a political leader who has fought every election for almost 25 years, who has built up a following from 4% to 49.85% of the electorate, who has overcome every adversity – banning on SBC, electoral defeat, deliberate reduction of official funding, assault and hospitalization, prosecution – is cut off by order of the court from participation in the political process when he is at his strongest and closest to the ultimate prize. How can that not impact negatively on the democratic development of the country? I defy anyone to say that the main judgment was fair. It is our duty as lawyers to fight unfairness in all its forms, without prevarication. Many outcomes were possible, but was it fair at the end of the day for Mr Michel to be saved by the Court’s favourable interpretation of agency and for Mr Ramkalawan to be sanctioned by the Court ignoring a provision which could have excused him?

We are concerned that in their opening statement of the first verdict, the judges chose to attack “newspapers”. This is not the first time that the courts have criticized the press, as was the case last year with two gagging orders. Do you believe the press and especially newspapers were attacked unjustly or do you believe that the press in any way prejudiced this case?

The press has a significant role to play in any democracy and its opinions should only be curtailed for the most extreme breaches. We are only now coming to grips as a nation with the type of robust press which exists elsewhere and we sometimes overreact. Everyone dislikes criticism, but courts must rise above that. Decisions must be questioned appropriately. Every citizen must be allowed to have an opinion on national issues. The courts have no monopoly on argument. A nation thrives when its citizens can express themselves openly. We all grow as a result. I was therefore saddened by the admonition of the Court in its opening words of the first judgment. The Courts will ultimately be the only institution whose pronouncement will settle a dispute, but that does not mean that others cannot have a different opinion, or that the opinion of the Court will necessarily be right.

Recently on television, you stated that the Judiciary is "totally independent of the Executive and Legislative branches of Government". Parti Lepep supporters have since taken to social media to stress the irony of your statement. Following the 2 verdicts that went against the plaintiff, do you still believe that the Judiciary, being one of the three pillars of Government, is truly independent?

The question I was asked on TV in the programme ‘Kwen Legal’ had not been rehearsed. I do not prepare in advance the programmes in which I take part. That would not be honest. But do not for one moment believe that when I was asked the question I did not know that the judgments in the two Petitions were to be delivered three days later, and that there was a possibility we would lose. I have been a lawyer for almost 40 years, after all! I was totally aware that my answer might be used against me in the event of a loss. But I chose to say what I did because it was true, and I maintain every word I said on TV. One swallow does not a summer make. One judgment – even one as important nationally as this one – does not permanently affect a whole institution. On balance, as I said on TV, the judiciary today is independent of the executive in a manner which it had not been for many years. That said, we live in a small society with a powerful executive. Naturally, occasionally a judgment will be given which will bring the general statement into question. Last week’s two judgments are examples. That is why I also said on TV that while generally the judiciary nowadays is independent and impartial, there are different judges and different cases. Some judgments will be hard to accept and will be seen to be unduly favourable to the executive. Some judges will be seen to lean more towards the government than others. Some cases will be seen to be doomed from the start. But overall the institution is independent and impartial.

There are allegations on social media that President Michel gifted Mrs. Twomey a large sum of money prior to her return from Ireland and therefore this judgment is seen as a return of the favour. What is your opinion on this matter?

I have no opinion on this. I have no knowledge of Mrs Twomey’s private affairs or her relationship, if any, with the President. I look at issues, never personalities. Mrs Twomey is a fine person with whom I have worked closely. She has a brilliant legal mind. She is hard working. But she is a human being. Like all of us, she makes mistakes. I often disagree with her. I often think she lacks tact in her manner of saying things. I believe her Court’s judgments in the two cases were wrong, and the outcome grossly unfair. I will always say so, and will appeal them. But that is that. I take it no further.

Do you believe that the judgment could have been in your favour had there been three Seychellois judges on the bench?

Not necessarily. The issue of having two non-Seychellois sitting on a fundamentally local matter naturally caused me – as I am sure it caused many people – some concern at the start. After all, this was a significant Seychellois issue and it would have been preferable for it to have been determined by a Seychellois bench. But nationality, alone, is no guarantee of fairness. An individual judging a matter is inherently fair or inherently unfair. I was satisfied in this case with the explanation that because of the nature of the case greater impartiality on the bench could be achieved by persons not steeped in the politics of the country. I am an officer of the Court so must keep my sentiments to myself. What I am able to say, though, is that it is a matter of regret that all the judges allowed themselves to make the mistakes of law they did and participated in the unfairness of the outcome.

Chief Justice Twomey was one of the lawyers who helped author the current Seychelles Constitution back in the early 90’s. Was it proper for her to be one of the sitting judges on this case given that there is major confusion in regards to the meaning of “votes cast” and “valid votes”? Surely she would not want to accept that she was one of the parties who made a serious error or omission in penning our current Constitution, be it intentional or not?

It is always odd to hear a person who participated in writing a law say the words ‘what those who drafted the law meant was…’ But that does not mean that such a person cannot objectively decide on the meaning of a word or phrase in the law. The issue here is not so much whether Mrs Twomey was one of the original drafters of the Constitution as whether her interpretation, and that of the other two judges, in last week’s judgment was correct. I suggest it was not, and will argue the point on appeal. If the Constitution, as the Court found, meant that the words ‘votes’ and ‘votes cast’ meant ‘valid votes cast’ (those which had selected a candidate) the question for determination will be why the constitution has found it fit to retain the threshold of 50% for a person to be elected when it is clear that in a two-person race the winner of the second round will automatically win more than 50%. Why didn’t the constitution simply say that the winner of the second round would be the successful candidate? That question, and my argument that the only conclusion was that the 50% had to be calculated using a different denominator (all votes cast), was not satisfactorily addressed by the Court.

Are you going to appeal the judgments?

We are. I have already prepared for filing on Tuesday 7 June an appeal against the decision to report Wavel Ramkalawan to the Electoral Commission with a view to his being disqualified from voting. This is an urgent issue because of the implications which this ruling may have on his political career. There are elections in the next few weeks, so the focus must be on that aspect. We will certainly consider filing grounds of appeal against what we consider to be the numerous errors in these judgments, but for the time being these are of less importance.

Given that Mrs. Twomey is not only the Chief Justice of the country, but also on the Appeals Court, is it appropriate for her to sit on the bench in the event that you file an appeal?

No. That would not be proper, and it won’t happen.

What will happen if you win your appeal?

The main focus at this point is to prevent Mr Ramkalawan from being disqualified. Everything else is legally interesting, but a distraction from this main issue. We will deal with them in due course and fight every part of the judgments we feel wrong. That is our duty, but our main preoccupation is to reverse the ruling against Mr Ramkalawan.

Were you surprised that the Constitutional Court suggested that the Electoral Commission strike off Mr. Ramkalawan’s name from the Voter’s Registry for having written a letter soliciting support from the Seychellois-Tamil community prior to the Presidential election?

Nothing surprises me anymore in life. Rather, I was dismayed by the decision. It was not necessary. During the case, we had made it clear that we did not seek any sanction against any person we were accusing of illegal practices. We pointed the Court to the discretion which the Court has to exempt any illegal practice from sanction and stated that we would be satisfied, if any illegal practice was made out as we were alleging, that these be excepted. For the Court then to sanction Wavel Ramkalawan without at any time considering whether his action in writing to the Tamil community was in good faith, or whether he should have been excepted in the circumstances appears to me to be not only ironic, but unjust, unfair and unnecessary, unless the Court had another motive. The Court had a duty to consider these matters. It failed in that duty. Additionally, we do not believe that the alleged illegal practice was made out against Mr Ramkalawan, or that he was given the opportunity which the ultimate sanction required to defend the disqualification. Would it not have been fairer for the Court to have contented itself with making the finding and with an admonition against this sort of practice on both sides without going so far as to pronounce a sentence of political death over a leader at the apex of his career? Would that not better serve the democratic development of the country than to remove the second most popular political person in the country from the political scene a few weeks before elections? The ruling against Mr Ramkalawan and the circumstances in which it was made will, I fear, overshadow the rest of the judgments forever.

Do you believe that the public will trust the Judiciary following this judgment that many see as prejudiced and overtly political?

What is the simple result of these cases? The illegal practices proven to have occurred on behalf of Mr Michel are brushed off. He gets off scot free. On the other hand, one illegal practice found to have been proven against Mr Ramkalawan will result in his disqualification as a voter for 5 years. How can such an outcome be accepted, even by the most tolerant of observers, as fair? The Judiciary in any country earns the trust of its citizens through the quality of its decisions and the fairness of its pronouncements. Every decision of the Judiciary which does not meet these criteria diminishes the institution. A winner must know that his or her win is sound; a loser must know that he or she lost fairly. Anything else is an exercise in futility. It may be too early to pass judgment on the Constitutional Court’s judgment. Time will place it in its correct orbit in the judicial firmament. Personally, I think the orbit will be a low one. It did not have to be so.

Having referenced the PDM case in the first petition, and having set the tone and precedence with these two new judgments, do you believe that anyone will ever challenge the constitutional courts again in relation to election cases of fraud or in relation to voting terminology?

One of the less enlightening arguments in these cases was that the PDM case had already pretty much dealt with the issue of the definition of votes and therefore the first petition was a waste of time. One of the most difficult findings of the Court to accept in the second petition was that unless a petitioner was able to prove that a person committing an illegal practice had been appointed as an agent of the candidate and had accepted the appointment the candidate was not responsible for the illegal acts of the person. To attempt to close off the Court from access to petitioners who have a valid argument to make, or to make it difficult for a petitioner with a genuine grievance to bring, are counter-productive. Election petitions should not be brought lightly. A country needs to settle down after an election, which is always divisive. To prolong the process by bringing ill-advised petitions is not to be encouraged. But where there is a clear grievance – and these cases fall into that category because the allegations of the petitioner were substantially found to have been proved by the Court – the Court’s duty is to hear the case and rule fairly. Sadly, the outcome of these two cases has pretty much put a stopper on any possible future petitions. To win a case on the basis of the rulings in the two cases will be well nigh impossible. This is not a good thing. We have suffered too long from a Constitutional Court which made it as difficult as possible to enter it and obtain redress. We must oppose a return to that time.

While the President welcomed the Constitutional Court hearings that ruled in his favour, he also said that he “.. took note of certain points in the ruling which represent challenges which need to be addressed to further strengthen Seychelles’ democratic institutions”. Do you foresee that due to the numerous errors and the embarrassment caused by such irregularities, that the President will move to appoint a new Electoral Commissioner and new members to the Electoral Commission?

The Electoral Commission did not cover itself in glory in these cases. That much is clear. What will now happen is in the province of the Commission itself and the President. It is not for me to judge. But there is another issue which we must not overlook. The President is himself tainted by the illegal actions of certain persons. The Court has found that he was not responsible for the actions of the persons who the Court found had committed illegal practices, but the fact remains that the President’s win is tainted by certain persons committing illegal acts in his favour. I am sure that the President will not have omitted to note this. What he will do as a result will be interesting.

A large majority believe that since the advent of multi-party, there has never been a free and fair election in our country. What fundamental changes are required to bring us closer to this reality?

This is an easy question to answer. For us to have a free and fair election, all the stakeholders must agree to play fair. We know how to. We just don’t. All we have to do is to canvass on issues, leave it to the voter to decide who to vote for, not pay money or peddle influence, not carry voters to the station and agree that ‘alternance’ between political parties is a good thing for a country. The Electoral Commission must tighten its act and be more proactive in stopping wrong practices. If we do that we will doing ourselves a favour, we will be raising voters above the status of commodities and we will live in a more democratic country.

Any final, parting words?

Yes. In all the confusion over the judgments and concern over the punishment meted out to Wavel Ramkalawan, we must not forget that Wavel Ramkalawan succeeded in proving the bulk of his case. He proved that six illegal practices had been committed by government employees and supporters of the President and that numerous irregularities were noted by the Court in the holding of the elections by the Electoral Commission. That none of this resulted in any sanction to anyone other than Wavel Ramkalawan will be the subject of discussion for years to come. Because of this imbalance, I regret to say that the judgment will convince few people. I suspect that, in time, everyone will realize that this was an opportunity missed for the Constitutional Court to show itself to be that beacon of freedom, fairness and impartiality which the Constitution designed it to be.